COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-312-CV
IN RE SIMON KIBERU AND RELATORS
HARRIS METHODIST H-E-B HOSPITAL
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION 1
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I. Introduction
We withdraw our opinion and judgment of November 1, 2007, and
substitute the following. Relators Simon Kiberu and Harris Methodist H-E-B
Hospital seek mandamus relief from the trial court’s order allowing real parties
in interest J.B. and B.O. (together, “RPIs”) to take presuit depositions of Kiberu
and Troy Lee Easley, a former Harris Methodist employee, and to obtain copies
of Kiberu’s and Easley’s personnel files. We originally granted the petition for
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… See Tex. R. App. P. 47.4.
writ of mandamus in part, but we denied relief as to Kiberu’s deposition and
production of Kiberu’s personnel file because we held that rule 202 presuit
depositions were available to investigate potential health care liability claims.
In re Kiberu, 237 S.W.3d 445, 449–50 (Tex. App.—Fort Worth 2007, orig.
proceeding), mand. granted, No. 07-0959, 2008 WL 4000808, at *1 (Tex.
Aug. 29, 2008). The Texas Supreme Court has since held that potential health
care liability claims fall within the coverage of section 74.351(s) of the civil
practice and remedies code. In re Jorden, 249 S.W.3d 416, 422 (Tex. 2008).
The supreme court remanded this case to us in light of Jorden. Kiberu, 2008
WL 4000808, at *1. We withdraw our previous opinion and conditionally grant
Relators’ petition for mandamus relief in its entirety.
II. Background
In March 2007, CT technician Easley allegedly sexually assaulted real
party in interest J.B. at Harris Methodist during the administration of a rectal CT
scan. Three months later, RPIs filed a rule 202 petition to investigate a
potential claim, requesting an order authorizing them to depose Kiberu, a Harris
Methodist orderly who might have knowledge of the alleged assault, and to
depose a corporate representative of Harris Methodist. See Tex. R. Civ. P.
202.1(b). The petition attached as exhibits the notices of intent to depose
Kiberu and the Harris Methodist corporate representative and, attached to the
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deposition notices, requests for production of Kiberu’s and Easley’s Harris
Methodist personnel files. After a hearing on the petition, the trial court denied
RPIs’ request as to Harris Methodist’s corporate representative but granted it
as to Kiberu. It additionally ordered that Easley’s deposition be taken and that
Kiberu and Easley produce their Harris Methodist personnel files. Relators filed
this petition seeking mandamus relief.
III. Discussion
A. Standard of Review
Mandamus relief is proper only to correct a clear abuse of discretion when
there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). There is no adequate
remedy by appeal when an appellate court cannot remedy a trial court’s
discovery error. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig.
proceeding). An error in compelling a deposition cannot be cured on appeal
because the depositions cannot be “untaken”; therefore, if the depositions were
improperly ordered, mandamus relief is proper. Jorden, 249 S.W.3d at
419–20.
B. Depositions
Relators argue that the trial court abused its discretion by granting RPIs’
request for presuit depositions. They complain that the trial court abused its
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discretion by ordering the depositions because RPIs’ rule 202 petition involves
a health care liability claim under chapter 74 of the civil practice and remedies
code and RPIs have not first complied with the preliminary expert report
requirement under that chapter. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.001(a)(13) (Vernon 2005) (defining “health care liability claim”),
§ 74.351(a) (Vernon Supp. 2008) (requiring service of expert report on each
party not later than the 120th day after the date the original petition was filed).
They also argue that the trial court abused its discretion by issuing a unilateral
order allowing RPIs to depose Easley.2
Generally, a plaintiff asserting a health care liability claim may not take
oral depositions until the plaintiff has served its expert report on the other
parties. See id. § 74.351(s). 3 Relators argue that the rule 202 depositions of
Kiberu and Easley, employees of Harris Methodist at the time of the alleged
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… RPIs’ rule 202 petition did not request to take Easley’s deposition,
RPIs did not serve Easley with the petition, and Easley did not appear at the
hearing. Even if section 74.351 did not govern RPIs’ claims, we would still
grant the mandamus petition as to Easley’s deposition because rule 202.3
requires service of the petition and a notice of hearing on all persons petitioner
seeks to depose at least fifteen days before the hearing. See Tex. R. Civ. P.
202.3(a).
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… Section 74.351(s) provides that “all discovery” is stayed until the
expert report is filed except for (1) written discovery, (2) depositions on written
questions, and (3) discovery from nonparties under rule 205 of the rules of civil
procedure, where related to the patient’s health care. Id.
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assault, are precluded because “Chapter 74 trumps a Rule 202 Petition” and
that they are therefore not to be deposed before the production of an expert
report. See id. § 74.001(a)(12)(B)(ii) (defining “health care provider” to include
an employee of a health care institution).
1. Health Care Liability Claim
Before determining whether the trial court abused its discretion by
determining that rule 202 applies to health care liability claims, we must first
consider the threshold issue of whether RPIs’ allegation of sexual assault at
Harris Methodist constitutes a “health care liability claim” under the civil
practice and remedies code.
A health care liability claim is a cause of action against a health care
provider or physician for treatment, lack of treatment, or other claimed
departure from accepted standards of medical care, or health care, or safety or
professional or administrative services directly related to health care. Id.
§ 74.001(a)(13). Relators cite several cases holding that a lawsuit against a
hospital based on the sexual assault of a patient is a health care liability claim
because the supervision and monitoring of patients and staff is part of the
patient’s health care and because patient safety is at issue. See Diversicare
Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 845 (Tex. 2005) (holding that
another patient’s physical assault of plaintiff, a patient in a nursing home, was
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a health care liability claim); NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28,
31 (Tex. App.—El Paso 2006, no pet.) (holding that claims arising from mental
health technician’s sexual assault of mental health center patient were health
care liability claims); see also Oak Park, Inc. v. Harrison, 206 S.W.3d 133, 135,
141 (Tex. App.—Eastland 2006, no pet.) (holding that nurses’ and counselor’s
physical assault of patient constituted a health care liability claim).
RPIs, in their response, argue that their claim is not a health care liability
claim because sexual assault can never be considered as, and has nothing to
do with, health care. But, as Diversicare and the other cases cited above show,
the actions of the hospital and its employees in hiring, supervising, and training
Easley and Kiberu, as well as its policies relating to transport of patients and
administration of rectal CT scans, should fall under the umbrella of “health care
liability claim” if RPIs file suit against a health care provider, which is uncertain
at this point.4
2. Rule 202 versus Chapter 74’s Preliminary Expert Report
Health care liability claims are subject to the statutory requirement of a
preliminary expert report and curriculum vitae. See Tex. Civ. Prac. & Rem.
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… RPIs point out in their response that they have not determined what
allegations they would make in a lawsuit, that they have not yet sued Harris
Methodist, and that they are not even sure that they will sue Harris Methodist.
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Code Ann. § 74.351(a). And until a health care liability claim is filed, a
claimant may not take the deposition of another party. See id. § 74.351(s)(3)
(staying discovery until the expert report is filed except as to discovery
involving nonparties that is related to the patient’s health care), § 74.351(u)
(allowing no more than two depositions after the claim is filed but before the
expert report is served).
According to our supreme court, health care liability claims not only
encompass filed suits, but also cover “cause[s] of action.” Jorden, 249 S.W.3d
at 421. Texas recognizes that a “cause of action” relates to facts, whether or
not suit is ever filed. Id. Furthermore, section 74.001(a)(13) uses the term
“cause of action” in the general sense, relating to facts rather than the limited
sense of filed suits.5 Id. at 422. We therefore conclude that the trial court
abused its discretion by ordering that Kiberu and Easley’s presuit depositions
be taken because RPIs’ potential health care liability claim falls within the
coverage of section 74.351(s). See Jorden, 249 S.W.3d at 422, 424.
Furthermore, Relators would have no adequate remedy by appeal because their
only opportunity to appeal the trial court’s order would occur after the
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… For example, the statute requires the claimant in a health care liability
claim to provide written notice of a claim at least sixty days before filing suit.
Tex. Civ. Prac. & Rem. Code Ann. § 74.051(a) (Vernon 2005).
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deposition had transpired. Id. at 419–20. Thus, we hold that Relators are
entitled to mandamus relief as to the trial court’s order allowing RPIs to take
Easley’s and Kiberu’s presuit depositions.
3. Personnel files
Having vacated the trial court’s order with regard to the presuit
depositions, we also vacate the trial court’s order requiring Easley and Kiberu
to produce their personnel files. Since we held that the trial court cannot order
presuit depositions of Easley and Kiberu because section 74.351 governs RPIs’
potential claim, it also cannot order them to produce their personnel files
pursuant to those depositions. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(s) (stating that, until a claimant is served the expert report and
curriculum vitae required by subsection (a), all discovery in a health care liability
claim is stayed except for acquisition of information “related to the patient’s
health care”); see also id. § 74.001(a)(10) (“‘Health care’ means any act or
treatment performed or furnished . . . by any health care provider for, to, or on
behalf of a patient during the patient’s medical care, treatment, or
confinement.”). Accordingly, we hold that the trial court also abused its
discretion by ordering that Easley and Kiberu produce their personnel files and
that Relators have no adequate remedy by appeal. See Dana Corp., 138
S.W.3d at 301.
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IV. Conclusion
Having concluded that mandamus relief is proper, we conditionally grant
the writ of mandamus. The trial court is ordered to vacate its order requiring
the taking of the depositions of Troy Lee Easley and Simon Kiberu and the
production of their personnel files. We are confident that the trial court will
comply with this opinion within the next thirty days; the writ will issue only if
it does not.
BOB MCCOY
JUSTICE
PANEL: HOLMAN, GARDNER, and MCCOY, JJ.
DELIVERED: October 16, 2008
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